Not a lawyer: making a request under the Freedom of Information Act

I’ve always tried to avoid blogging about the law. I’m wary of looking like That Guy, the one who thinks that a mixture of received wisdom and googling makes you practically a barrister because hey, this law stuff is easy. It’s a fine line between contributing to an online debate and suddenly turning into the Queen’s Counsel of the Comments Section, saying things like “I think you’ll find that’s technically assault,” when you really have no clue. It’s easier to steer clear of the whole subject. But... you can guess what’s coming next, can’t you? I’ve changed my mind. I still believe that actual legal work such as criminal defence should be done by professional lawyers. But there are many times in life when the ordinary person can use basic knowledge of the law to achieve something. I blog so much about consumer rights; why don’t I just use the L-word? So this is the first in a shortish series of “not a lawyer” posts, detailing my experience of using the law as an ordinary person with no legal qualifications. I hope some of these posts will be useful to others.

Making a request under the Freedom of Information Act

I’m a supporter of Witney Area Fairtrade Action Group. The group successfully campaigned to make Witney a Fairtrade Town in 2011. Now the group is working towards boosting awareness and support of Fairtrade in Witney. Last August, the group ordered a metal sign saying WITNEY IS A FAIRTRADE TOWN. Witney Congregational Church was very happy to display the sign. The sign went up and all was well until September, when someone made an enquiry to the council’s planning officer asking if the sign was breaking any planning regulations. West Oxfordshire District Council decided that it was, because the group hadn’t sought consent under advertising regulations, so WAFTAG had the sign removed. (The bit in the Witney Gazette article about WAFTAG receiving a letter from the council is incorrect – someone at the council spoke to someone at the Congregational Church, who put them in touch with WAFTAG.) The people who had worked hard to get the sign put up were understandably upset and couldn’t really understand why they had to take it down. So I offered to make a request under the Freedom of Information (FOI) Act to find out. Making a request under the FOI Act is now very easy, thanks to the excellent website What Do They Know. You don’t even have to know the official name of the body you’re complaining to; for example, typing in “Darwen Council” will offer you suggestions such as Blackburn with Darwen Borough Council. I already knew I had to make my request to West Oxfordshire District Council (WODC), so the whole thing was very straightforward. I asked:

1. Who complained about the sign?
2. What were their grounds for complaining about the sign?
3. On what grounds is a sign informing the public that Witney is a Fairtrade Town (a simple, verifiable fact) categorised as advertising?

I got a response from the Head of Planning saying that it wasn’t really a complaint as such, it was just a query about whether the sign required consent. She pointed me to the the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 but didn’t tell me which part of these regulations defines an advertisement.

Advertising regulations

I took a look at the regulations. Schedule 2 of the regulations gives the "standard conditions" - which WAFTAG met, having the permission of the site owner, not endangering any passers-by, etc. But meeting the standard conditions isn't enough - you also need consent unless the ad is of a certain type. Schedule 3 then explains which classes of advert don't require consent. This seemed less clear-cut, but I noticed that "functional advertisements of local authority" are exempt and wondered if a council-backed sign about Witney’s Fairtrade status might have escaped the need for advertisement consent. But I’m not a lawyer. I’m an ordinary member of the public and I wanted an answer in laywoman’s language. And I think a response to an FOI request should be clear enough for an ordinary person to understand. So I followed up on my request.

Requesting a review of a response to your FOI request

If you’re not happy with the answer you got, What Do They Know makes it easy to request a better one. You can request an internal review of the council’s handling of your request through the site, which is what I did. This time, I got a much clearer answer. The Head of Legal and Democratic Services responded by giving me a link to government guidance on what constitutes an advertisement. This was much clearer than the text of the Act and I finally understood why the sign came under the Control of Advertisement provisions. My letters to the district council and their replies are all now archived on the What Do They Know website, which means that other people can view the exchange too.

FOI without the handy website

I have made FOI requests before the What Do They Know site was created, and it’s still pretty simple. You just write a letter with your query, using some magic words along the lines of: “This is a request under the Freedom of Information Act.” The only advantage to doing it in this way is that you can keep the results of your query to yourself. But it’s called the Freedom of Information Act for a reason, isn’t it?

Happy ending

As for the Fairtrade group, they couldn’t afford the £385 administration fee to apply for advertising consent, especially with no guarantee that consent would be granted. But a council planning officer confirmed that if the sign was part of the church noticeboard, it wouldn’t need advertisement consent. So the group decided to order a smaller sign to go under the noticeboard. It’s now in place, telling passers-by that Witney is still proud to be a Fairtrade Town.